State v. Berry, 46124

• Decision Date: 21 August 1984
• Docket Number: No. 46124,46124
• Citation: 679 S.W.2d 868
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerome Edwin BERRY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 868

679 S.W.2d 868

STATE of Missouri, Plaintiff-Respondent, v. Jerome Edwin BERRY, Defendant-Appellant.

No. 46124.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 21, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 16, 1984.

Application to Transfer Denied

Nov. 20, 1984.

Lee Thomas Lawless, Sp. Asst. Public Defender, St. Louis, Michael L. Henderson, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie L. Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Judge.

Jerome Edward Berry, the appellant, was convicted in the Circuit Court of St. Louis County, Missouri, of two counts of forcible rape, § 566.030; one count of attempted robbery in the first degree, § 564.011, and one count of kidnapping, § 565.110. He was sentenced to 30 years imprisonment in the custody of the Missouri Department of Corrections and Human Resources on his conviction of Count I; on Count II, to 30 years, said sentence to be served concurrently with the sentence imposed in Count I; on Count III, to 15 years, to be served consecutively to the sentence imposed in Count I and II; and on Count IV, to 15 years, to be served concurrently with the sentence imposed in Count III. He appealed. We affirm.

On appeal six points are raised as grounds for reversal of the trial court judgment. They are:

1) The trial court erred in admitting evidence of a green baseball cap because the evidence was obtained via an illegal arrest.

2) The trial court erred in admitting evidence of oral statements made by defendant while in custody because the statements were fruits of an illegal arrest and conducted without informing the defendant that he was allowed to consult with an attorney prior to making the statements.

3) The trial court erred in overruling appellant's motion to dismiss because the trial did not begin until 265 days after arraignment, a technical violation of § 545.789, RSMo.

4) The trial court erred in failing to submit instruction No. A., the MAI-CR2d 3.42.

5) The trial court erred in overruling the defendant's objection to the direct examination of Joseph Siscal, the arresting officer, on whether or not the defendant had previously used an alias.

6) The trial court erred in overruling defendant's offer of proof of hospitalization of appellant's sister prior to the night of the crime because such evidence corroborates appellant's alibi.

Appellant does not challenge the sufficiency of the evidence to support the convictions, so a brief statement of the evidence will be sufficient.

According to the evidence the victim, Ms. V____ R____, at about 9:30 p.m. on August 3, 1981, was en route to the house of a friend of her brother's in University City, Missouri. As she was walking across a lot adjacent to a Dairy Queen store near the intersection of Leland and Kingsland Avenues she was approached by a man with a gun who demanded all her money. She told him she had no money but gave him her purse. He identified himself as a police Berry's defense was alibi.

officer who was on duty because of rapes and robberies in the area and insisted on accompanying her to the house of the friend of her brother. As they proceeded together she realized he was leading her in the wrong direction, and when she protested he put his hand in his pocket, removed the gun, put it in her back, and forced her into the basement of an apartment on Clemens Avenue where he raped her twice over a period of two hours.

Appellant has failed to preserve his first two points for review because he has not favored us with a transcript of the evidence adduced at the hearing with respect to his motion to suppress the green baseball cap or oral statements he made following his arrest. State v. Cleveland, 627 S.W.2d 600, 601 (Mo.1982); State v. Smith, 612 S.W.2d 895, 897 (Mo.App.1981). Furthermore, defense counsel failed to object at trial to the testimony touching on the statements made by appellant after he was taken into custody. "When a motion to suppress evidence is denied and the evidence is offered, a defendant must object at the trial to preserve his contentions for appellate review." State v. Summers, 660 S.W.2d 772, 773 (Mo.App.1983).

In the exercise of our discretion we choose not to review these points as "plain error" pursuant to Rule 30.20, because we perceive no manifest injustice nor miscarriage of justice in appellant's conviction of these charges.

Appellant next contends that the trial court erred in denying his motion to dismiss because he was not brought to trial within 180 days of arraignment as required by § 545.780, RSMo 1978, the Speedy Trial Act. ¹ According to his calculations only 52 days may be deducted from the 265 days between arraignment and trial. If he is correct the state did not bring him to trial until 213 days had passed from the date of his arraignment. However, in calculating the number of days which passed between his arraignment and trial appellant did not exclude 90 days for continuances granted at his request, ² and, if these days are deducted from the 213 days previously noted, he will have been brought to trial within 123 days, well within the 180 days mandated by the statute.

However, despite the fact the record demonstrates that 90 days were consumed by continuances granted at his request, appellant contends that those days may not be excluded in computing the 180 day period because the trial court failed to state the reason for granting these continuances as required by § 545.780.3(5)(a). ³

In none of the four continuances granted defendant did the trial court set forth its Even where the trial court fails to set forth its reasons for granting defendant a continuance at his request, the burden is on the defendant to show that the delay in bringing him to trial was "occasioned" by the state. Franco, supra, Newberry, supra; and State v. Bunch, 656 S.W.2d 750, 751 (Mo.App.1983). Appellant has utterly failed to meet this burden. We rule this point has no merit.

reasons for finding that the ends of justice served by the granting of the continuances outweigh the best interests of the public and the defendant to a speedy trial. Appellant relies on State v. Richmond, 611 S.W.2d 351, 355 (Mo.App.1980) ⁴ as authority for his position. He concedes, however, that he has the burden of showing that the failure to have the trial commence within the time limits mandated by the statute was "occasioned" by the state. The Supreme Court has so held in State v. Franco, 625 S.W.2d 596, 601 (1981) and State v. Newberry, 605 S.W.2d 117, 123-124 (1980).

Appellant complains that the trial court erred in failing to submit a circumstantial evidence instruction--MAI-CR 3.42--which he tendered. This point has no merit. MAI-CR 3.42 need not be given where there is direct evidence of the crime charged. State v. Leonard, 671 S.W.2d 365, 366 (Mo.App.1984). There was direct evidence of the crime charged in this case. The victim's testimony in this case is direct evidence of the crimes charged. She identified the appellant as the man who abducted her, raped her, and attempted to rob her. There was no error in the trial court's failure to submit a circumstantial evidence instruction.

Appellant charges that the trial court erred in overruling his objection to the testimony of a police officer, Joseph Siscal, that he had on a prior occasion used the name "James O'Connor" as an alias, thereby prejudicing the jury against appellant "by casting aspersions on his character."

During the course of the state's case, Joseph Siscal, a University City Police officer, who was engaged in the investigation of this case, and another University City police officer, Chris Beckett, were staked-out in the vicinity of the scene of these crimes at 6267 Clemens Avenue, University City, Missouri, during the evening hours of August 4, 1981. They were looking for the man who had abducted V____ R____ because he had ordered her to meet him again at the scene of the crime at 9:30 p.m. the next evening and to deliver $1,000.00 to him. Both police officers were dressed in blue jeans and were sitting under a tree in an adjacent apartment building. They were looking for a black male, tall, thin, wearing a green baseball cap, and black dress shoes, fitting the description of the rapist given to them by the victim.

While so engaged the police officers observed a man walk past the apartment building they were watching two or three times and then take up a position in a gangway between two buildings. He stood in the shadows and would step out of the shadows and look up and down the street; if he saw a car headlight or someone coming At trial the following questions were asked by the prosecutor and Officer Siscal gave the following answers:

he would slip back into the shadows out of sight. After observing him for 5 or 10 minutes they walked up to the man, identified themselves as police officers, showed him their badges and identification and inquired what he was doing there. The man identified himself as Jerome Berry and stated he was waiting for a friend, "James O'Connor."

Q. Did you ever come up with anyone that used the name of James O'Connor before?

A. Yes, sir.

Q. Would you tell this jury to your knowledge who had used the name James O'Connor, who had given that name before?

At that point defense counsel objected on the ground of "hearsay." A bench conference followed. During this conference defense counsel renewed his objection to the question on the grounds it was hearsay and "brings in evidence of other crimes, evidence of other arrests." The objection was overruled and the following dialogue took place.

Q. (Assistant Circuit Attorney) To your knowledge who had ever given the name James O'Connor before?

A. Jerome Berry

Officer Siscal then identified appellant as the man he had seen in the gangway the night of August 4, 1981.

Appellant contends that this evidence, that he used another name,...